01a44542_r
11-29-2004
Phyllis L. Black, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Phyllis L. Black v. Department of the Treasury
01A44542
November 29, 2004
.
Phyllis L. Black,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A44542
Agency No. 04-2152
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 27, 2004, dismissing her formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
On December 24, 2003, complainant filed a formal complaint, claiming
that she was the victim of unlawful employment discrimination in reprisal
for prior protected activity.
In its May 27, 2004 final decision, the agency determined that complainant
sought EEO counseling on October 10, 2003. The agency further determined
that the instant complaint was comprised of the claim that complainant
was subjected to discrimination in reprisal for prior EEO activity when:
During Mid 2001, complainant was asked by the Acting Department Manager
to return to the Collection Division for a detail beginning in August
2001, and ending in October 2001;
During September 2002, she did not receive an annual performance award;
From February 2002 through February 2003, she had five weeks of classroom
training, despite being advised that she would be trained by job coaches
for one year; and as result, she was not properly trained;
As result of not being properly trained, her manager wrote her up on
several occasions for poor performance;
During her training phase, her manager assigned her 12 to 15 cases at a
time, even though she was aware complainant had an inventory that was
beginning to overage because of the unreasonable amount of inventory
being assigned to her;
During 2003, her manager put her inventory into a large cart and made
her push the cart from room to room in an attempt to embarrass her in
front of her peers;
During August 2003, she was denied installment training;
During 2003, two employees within her work group received awards and
she did not;
During 2003, she received an unacceptable appraisal rating which does
not accurately reflect her performance;
During September and October 2003, she was denied the opportunity to
work overtime;
During 2003, complainant was assigned to perform collection work while two
other employees within her same grade/series were given clerical duties;
During October 2003, employees were given an opportunity to be reassigned
during the reorganization, to the Collection or the Examination Division;
however, when she volunteered for a reassignment to the Collection
Division, she was denied a position; and
She was blacklisted by management because, when she was an EEO Counselor
in 1985, she forwarded a 30-day letter to a group of employees.
The agency dismissed complainant's claims (1), (2), (3) and (7) pursuant
to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact, and
claims (4) - (6) and (8) - (13) pursuant to 29 C.F.R. � 1614.107(a)(7),
for failure to cooperate. The agency's decision indicated that an EEO
specialist had made numerous attempts to contact complainant for an
explanation as to the timeliness of her EEO contact for claims (1), (2),
(3) and (7), and to obtain other information concerning claims (4) -
(6) and (8) - (13). Specifically, the agency stated that it attempted
to contact complainant to obtain information in writing on January 16,
21, 23, and 26, 2004; and by telephone on five occasions from February
5 through March 5, 2004. The agency also stated that a final attempt
to secure information was made on April 8, 2004, by certified mail,
indicating complainant had fifteen days to respond or face dismissal
of the complaint. The agency determined that complainant received the
April 8, 2004 letter on April 21, 2004, but had not responded to the
letter, or any other request for information. The agency thus determined
that complainant's October 10, 2003 EEO Counselor contact was more
than forty-five days after the dates of incident for claims (1), (2),
(3), and (7); and that her EEO Counselor contact for those claims was
therefore untimely. The agency also found, that complainant had failed
to provide requested information with regard to claims (4) - (6) and (8) -
(13), and that the record was insufficient to adjudicate those claims.
The record reflects that, on February 5, 2004, complainant sent
by facsimile transmission, a seven-page hand-written letter,
with attachments, to the agency EEO Specialist in response to her
January 16, 2004 request for information. In the letter, complainant
stated that she received the �e-mail� request on January 21, 2004,
and attempted to call the EEO Specialist on February 4 and 5, 2004.
In her specific responses to the agency's questions, complainant stated,
while discussing the denial of an award �in late Sept or early Oct,� that
she �contacted the EEO as early [as] Sept, but had to wait until someone
was assigned to me.� Complainant also stated that awards were given out
�in Oct. of each year� or �[s]ometimes Sept.,� and that she �addressed
EEO before 45 days had expired.� We also note that, concerning claim
(1), complainant's response maintained that she was asked to return to
the Collection Division for a detail from August through October 2002,
and not in 2001, as stated in the agency's final decision.
The Commission first determines, with regard to claims (1), (2), (3),
and (7), that there is insufficient evidence of record to determine
whether complainant made timely EEO Counselor contact. In its final
decision, the agency determined that complainant's EEO Counselor contact
was on October 10, 2003; however, there is no evidence in the record
addressing complainant's February 5, 2004 contentions of prior contact.
Moreover, it is unclear whether complainant's statements concerning
her EEO Counselor contact relate to a 2002 (claim (2)) or a 2003 (claim
(8)) award denial claim, and it is unclear how her EEO contact relates to
complainant's asserted incident dates in claim (1). Complainant provides
some specific information concerning her claimed EEO contact prior to
October 10, 2003; however, she has provided no evidence for the record
to substantiate her assertions. Consequently, we remand claims (1),
(2), (3), and (7) to the agency to supplement the record with evidence
of when complainant made EEO Counselor contact, and to clarify the date
of incident for claim (1).
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal
of a complaint where the agency has provided the complainant with a
written request to provide relevant information or otherwise proceed
with the complaint, and the complainant has failed to respond to the
request within 15 days of its receipt or the complainant's response does
not address the agency's request, provided that the request included a
notice of the proposed dismissal. The regulation further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has also held that such dismissal is applicable only in
cases where there is a clear record of delay or contumacious conduct by
the complainant. See Magdalene Anderson v. United States Postal Service,
EEOC Request No. 05940850 (February 24, 1995)
We also find that the improperly dismissed claims (4) - (6) and (8) - (13)
, based on complainant's failure to respond to requests for information.
First, we find that the agency has not shown that the complaint
could not be adjudicated without further information from complainant.
The record indicates that most, if not all, of the information requested
of complainant was provided in the EEO Counselor's Report and in the
extensive seven-page hand-written letter, with attachments, sent by
complainant to the agency on February 5, 2004. Moreover, as evidenced
by that response, the agency incorrectly found that complainant did
not respond to any of its inquiries, and thus failed to establish that
complainant engaged in delay or contumacious conduct sufficient to warrant
dismissal of the complaint. We therefore determine that claims (4) -
(6) and (8) - (13) were improperly dismissed for failure to cooperate
pursuant to 29 C.F.R. � 1614.107(a)(7).<1>
Accordingly, the agency's decision to dismiss claims (1), (2), (3), and
(7) for untimely EEO contact is VACATED. The agency's decision dismissing
claims (4) - (6) and (8) - (13) for failure to cooperate is REVERSED.
The complaint is hereby REMANDED to the agency for further processing
in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
1. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall undertake a supplemental investigation to
determine the date of complainant's EEO Counselor contact, and to clarify
the dates of incident for claim (1). The agency shall supplement the
record with any relevant documentation obtained as a result of its
investigation, specifically including affidavits from complainant,
complainant's EEO Counselor, and any other relevant EEO and Human
Resources personnel. Within thirty (30) calendar days of the date
this decision becomes final, the agency shall either issue a notice of
processing or a final decision, pursuant to 29 C.F.R. � 1614.107(b).
2. The agency is ordered to process claims (4) - (6) and (8) - (13) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's notice of processing and determination pursuant
to 29 C.F.R. � 1614.107(b), if applicable, regarding claims (1), (2),
(3), and (7), as well as a copy of the agency's letter of acknowledgment
to complainant and a copy of the notice that transmits the investigative
file and notice of rights regarding claims (4)-(6) and (8)-(13) must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2004
__________________
Date
1The Commission nonetheless advises complainant
to cooperate with the agency in the continued processing of the instant
complaint, or face a possible future dismissal of the complaint.